What courts will be looking at in judging new census...

1of 3California Attorney General Xavier Becerra speaks to members of the media about the investigation of the shooting death of Stephon Clark in Sacramento. The Census Bureau “is well aware that adding the citizenship question will directly cause an undercount in the 2020 Census,” Becerra's office said.Photo: JOSH EDELSON;Josh Edelson / AFP / Getty Images

2of 3In this March 15, 2010 file photo, copies of the 2010 Census forms in Phoenix. The 2020 U.S. Census will add a question about citizenship status, a move that brought swift condemnation from Democrats who said it would intimidate immigrants and discourage them from participating.Photo: Ross D. Franklin / Associated Press

3of 3A Census Bureau member holds a clipboard with Census forms in New York on March 29, 2010. The 2020 census will ask respondents if they are U.S. citizens. Critics fear that the highly charged request by the Trump administration will result in a substantial undercount of the population because immigrants might not take part. Photo: Josh Haner / New York Times 2010

For courts considering the Trump administration’s plan to add a citizenship question to the 2020 census, the question will be whether this is a benign inquiry designed to produce information that protects voting rights, or a politically motivated effort to depress participation in the survey — and thus congressional representation and federal funding — in immigrant-rich states like California.

The answer is likely to determine whether the citizenship inquiry is found to be a constitutional addition to the once-per-decade census, where it last appeared in 1950. The state, in its lawsuit, offered a clue from a surprising source — a researcher from the Census Bureau itself.

In November, the researcher, Mikelyn Meyers, told a bureau advisory committee that immigrant households were already frightened of giving information to census-takers, despite a promise that their names would be strictly confidential.

One participant in a study last year feared “the possibility that the census could give my information to internal security and immigration could come and arrest me,” Meyers reported. She said another participant walked out of the home when an interviewer started asking about citizenship, and one Latino household began moving out of a mobile home after a Census Bureau interviewer left a note on their door.

This “unprecedented groundswell in confidentiality and data-sharing concerns, particularly among immigrants or those who live with immigrants, may present a barrier to participation in the 2020 census,” Meyers told the Advisory Committee on Racial, Ethnic and Other Populations.

That’s powerful evidence that the Census Bureau “is well aware that adding the citizenship question will directly cause an undercount in the 2020 Census,” state Attorney General Xavier Becerra’s office said in the lawsuit filed late Monday in federal court in San Francisco. New York’s attorney general announced plans for a similar suit by multiple states.

In this Aug. 15, 2012 file photo, a line of people living in the U.S. without legal permission wait outside the Coalition for Humane Immigrant Rights in Los Angeles. California is suing the Trump administration over its decision to add a question about citizenship to the 2020 U.S. Census.

Photo: Damian Dovarganes, Associated Press

California’s lawyers argued that the question, and its inevitable impact, would violate the government’s constitutional duty to conduct an “actual enumeration” of the entire U.S. population, citizens and noncitizens, every 10 years.

The result, Becerra said, would be the loss of billions of dollars in federal aid to California and other states with large immigrant populations, and the likely loss of U.S. House seats, all based on census counts.

California, the lawsuit noted, has more than 10 million foreign-born residents and more than 5 million noncitizens among its population of nearly 40 million. The Legislature’s fiscal analyst reported that an undercount in the 1990 census cost California $2 billion in federal funds over the next decade and an additional House seat.

But Commerce Secretary Wilbur Ross, whose department oversees the currently leaderless Census Bureau, said in announcing the new census question that citizenship information would help the government enforce the Voting Rights Act’s protections for racial minorities.

One section of that law encourages creation of districts in which minorities would make up a majority of the eligible voters. The Justice Department, in a letter to Ross in December, said a citizenship count would aid in its enforcement by disclosing the number of potential voters in each district.

Although the Census Bureau expressed fears that the new question would discourage noncitizens from taking part in the census, “no empirical data existed” to justify those concerns, which were outweighed by “the need for accurate citizenship data,” Ross said.

The information is “necessary for the Department of Justice to protect voters,” White House press secretary Sarah Huckabee Sanders told reporters.

She also asserted that a citizenship question had been “included in every census since 1965, with the exception of 2010 when it was removed.” In fact, the question was removed after the 1950 census, and transferred to a “long-form” questionnaire sent to 1 in 6 households each decade. In 2000 it was moved again to the American Community Survey, sent annually to about 3 million households.

The Census Bureau normally tests proposed new questions three years ahead of the decennial to determine their impact. A trial run of the next census in Rhode Island last year, however, did not include a citizenship question.

As a result, the proposed 2020 addition would “be implemented blindly without any scientific evaluation,” said Arturo Vargas, executive director of the National Association of Latino Elected and Appointed Officials Education Fund.

Vargas, also a member of the Census Bureau’s advisory committee that heard Meyers’ report in November, said surveys are already reporting “widespread and unprecedented fear” of census-takers. He said he contacted Ross by phone recently and told the commerce secretary the addition of any new question would be “costly and disastrous.”

While surveyors promise household members that their information will be kept strictly confidential, Holly Cooper, co-director of the Immigration Law Clinic at UC Davis, said many immigrants would refuse to participate, out of “fear it will be used as a registry” for arrests and deportations.

The likely political impact would fall on states with majorities of Democrats, whose leaders denounced the plan.

“Given President Trump’s toxic rhetoric and aggressive policies toward immigrants, it’s clear his administration wants to include this question to discourage participation in immigrant communities,” said Sen. Dianne Feinstein, D-Calif.

Adding a citizenship question “will inject fear and distrust into vulnerable communities and cause traditionally undercounted communities to be even further underrepresented, financially excluded and left behind,” said House Minority Leader Nancy Pelosi of San Francisco.

Other Democrats said the Trump administration’s reliance on the Voting Rights Act rang hollow in view of the administration’s support for voter ID laws and other measures that have reduced minority turnout.

“An undercount will worsen underrepresentation of the very communities that law was meant to protect,” state Senate President Pro Tem Toni Atkins, D-San Diego, and Sen. Richard Pan, D-Sacramento, chairman of the Senate Select Committee on the Census, said in a statement.

Weighing against the state’s lawsuit, however, is the Census Bureau’s authority to determine census questions, and the deference courts usually give to the bureau’s stated reasons.

The key question, said Hadar Aviram, a constitutional law professor at UC Hastings College of the Law in San Francisco, is likely to be whether a citizenship question intrudes on the right of privacy, particularly in immigrant households.

Government lawyers will argue that “we’re not asking about people’s intimate life, we’re asking about their status in the country,” she said. On the other hand, Aviram said, “anybody reading the news would know this an incredibly sensitive question,” which conceivably would be “jeopardizing the accuracy of the information.”